DUE PROCESS, NOT DESPERATION: THE LEGAL AND MORAL CASE FOR THE STATE’S RECONSIDERATION APPLICATION ON PRESIDENT LUNGU’S REMAINS

DUE PROCESS, NOT DESPERATION: THE LEGAL AND MORAL CASE FOR THE STATE’S RECONSIDERATION APPLICATION ON PRESIDENT LUNGU’S REMAINS

By Bornwell Muntanga

It’s indeed laughable when you read Given Mutinta ‘s article in response to the state’s reconsideration application on the Former Head of State Mr. EDGAR CHAGWA LUNGU’S REMAINS. Here is my argument:

The Republic does not litigate on sentiment. It litigates on law. The reconsideration application filed by the Attorney General, Mr. Mulilo Kabesha, SC, before the Gauteng High Court is not evidence of political overreach. It is proof of constitutional fidelity.

Opposition voices have chosen to trade in innuendo. They allege that Government “will go to any length to possess” the remains of Zambia’s Sixth President, Mr. Edgar Chagwa Lungu. That allegation is legally illiterate and factually bankrupt. The truth is simpler and nobler: the Zambian Government seeks to discharge its solemn duty to accord a former Head of State full honours and a dignified burial on Zambian soil. The reconsideration application is the proper legal instrument to achieve that constitutional end.

1. Reconsideration of Ex Parte Orders Is a Fundamental Right, Not a Tactic

South African Civil Procedure is explicit. Rule 6(12)(c) of the Uniform Rules of Court entitles any person aggrieved by an – ex parte- order to apply for its reconsideration on good cause. An – ex parte – order, by definition, is granted in the absence of the affected party. The right to be heard is the first principle of natural justice: “audi alteram partem”.

The urgent order directing the return of President Lungu’s remains to Two Mountains mortuary was obtained without notice to the Republic of Zambia. As a sovereign state with a recognised legal interest in the remains of its former Head of State, Zambia was entitled to be heard. The Attorney General’s application is therefore not an extraordinary step. It is the ordinary exercise of a statutory right. To characterise it as “desperate” is to attack the very architecture of due process.

2. Material Non-Disclosure Renders an Ex Parte Order Liable to Be Set Aside

The law places a “golden rule” on – ex parte – applicants: the duty of utmost good faith. All material facts, including those adverse to the applicant, must be disclosed. The failure to do so is a ground for rescission, regardless of the merits.

The Zambian Government contends, with force, that the Court was not informed that: 

a) The South African Police Service had opened a formal inquest into a death described by the late President’s own associates as “sudden, unexpected and suspicious”; and 

b) A medico-legal postmortem was pending at Tshwane Forensic Services pursuant to Section 3 of the Inquests Act 58 of 1959.

These are not peripheral details. They are jurisdictional facts. A court cannot lawfully order the release of a body that is subject to a statutory police inquest. Non-disclosure of SAPS’ custody vitiates the order “ab initio”. On this basis alone, the Attorney General stands on firm legal ground.

3. The State Has a Legally Cognisable Interest in a Former Head of State

A former President is not a private citizen. International practice and municipal law recognise that the State retains a residual interest in the remains of a Head of State for purposes of state funeral, national archives, and public mourning. The Pretoria High Court has already affirmed this interest in its earlier judgment ordering transfer to the Zambian Government.

On 22 April 2026, the Government asserted custody premised on its legal position that the family’s appeal to the Supreme Court of Appeal had lapsed by operation of law. That position is arguable and must be tested. A reconsideration hearing is the forum prescribed by law for testing it. That is not “wrongful possession.” That is procedural propriety.

4. The Postmortem of 23 April 2026 Was Mandated by Statute, Not by Politics

Where death is not due to natural causes, SAPS does not require family consent to conduct an autopsy. The Inquests Act commands it. Dr. Canisius Banda, Former Chairperson of the PF Committee on Health, publicly stated the death was “sudden, unexpected and suspicious requiring a forensic investigation.” Mr. Raphael Nakachinda confirmed the family itself was “insisting on conducting a postmortem.”

In such circumstances, the postmortem at Tshwane Forensic Services was not a “controversial” act. It was a statutory obligation. To allege that Government “disregarded” a High Court directive ignores the trite principle that a court order cannot override an Act of Parliament. SAPS custody for purposes of an inquest supersedes private burial arrangements until the inquest is closed.

5. The Government’s Objective Is Dignity, Not Domination

The opposition’s narrative collapses under one question: if the State wanted possession at all costs, why submit to judicial oversight? Why file a reconsideration application that invites cross-examination, argument, and judgment?

Because the objective is lawful repatriation for a state funeral in Zambia, not interment in South Africa. That objective cannot be achieved through propaganda. It can only be achieved through court orders that are regular, competent, and final. The reconsideration application is the vehicle to regularise the process and remove legal impediments.

Conclusion
Ladies and Gentlemen, the Law Is the Shield of the Dead and the Living.  The Attorney General has not weaponised the courts. He has submitted to them. The reconsideration application is founded on procedural entitlement, material non-disclosure, and the State’s legitimate interest in a former President.

To frame this as malice is to slander the dead and mislead the living. President Edgar Chagwa Lungu served under the Constitution. His remains are now subject to the same Constitution and the laws of the jurisdiction where he died.

Let the High Court decide. Let the inquest conclude. And let Zambia bury its son at home, with honour, with dignity, and with the law as our only guide.

I submit 🙏